Thoughts on politics, law, culture and guns from an eclectic, but mainly center-right point of view

Thursday, November 27, 2014

De Optimis Legibus

I love it when guys who get to publish their stuff in magazines and papers are just stonedeadwrong about their subject. I don't get to call them out too often as my expertise is so limited, but the aftermath of no true bill from the Ferguson, MO Grand Jury is a targetrichenvironment. First a little background.

There are two ways to bring criminal charges against a person of the United States. First, and this is the common way out West, is for the prosecutor to file an information with the court laying out the charges and some details of the crime alleged. Then, for many of the serious crimes charged this way, there is a preliminary hearing which in most states (not California) is seriously one sided for the prosecution. Hearsay is admissible (but can't be, in Colorado, 100% of the evidence) and all the judge has to find is that probable cause has been shown. Probable cause is sufficient evidence for a reasonable person to think that a crime might have been committed. That's a very low standard especially compared with the burden of proof at a criminal trial. The reason the prelim can be so one sided is that we rely on the ethical constraint on the prosecutor not to bring charges he or she cannot prove beyond a reasonable doubt (95% sure). That ethical constraint works almost all the time.

The second way is by Grand Jury, and that's how most of the Eastern states do it. It's a little one sided in that there is no defense attorney, nor judge present and no cross examination by the other side of witnesses and the rules of evidence are relaxed. The Grand Jury is looking to see if probable cause for an indictment exists. But the jurors are supposed to look at the testimony and decide credibility. In the prelim, the judge doesn't often decide credibility, any evidence of the crime shown is usually good enough to send the case to trial even if there is counter evidence. That's a huge difference between prelims and grand juries.

Anyone who says there was no way Officer Wilson would have been convicted at trial but they should have had the trial anyone is ignorant of the aspect of criminal law explained above. We don't put on show trials. If the prosecutor doesn't think he or she can get a conviction the case cannot go forward. If the grand jurors have heard all the evidence and decided there is no way that the person against whom the indictment is sought will be convicted then the juror has a duty to return no true bill, the functional equivalent of acquittal before trial. Once more, on the other hand, in the normal prelim, even if there is a ton of evidence that makes a conviction tough to imagine, if there is any evidence that would convict the case is bound over for trial.

OK, that took longer than I had thought because the difference is real, even substantial, but subtle.

Most of the legal morons saying we should have had a show trial are confused, I believe, by the rules of the prelim versus the rules of the Grand Jury. If the prosecutor had decided he could get a conviction of Officer Wilson for voluntary manslaughter, for example, (and he didn't think he could) and he brought the charges and in the prelim, even one witness said Officer Wilson shot Mr. Brown to death when Mr. Brown posed absolutely no danger to the officer (as in the false narrative Brown had his hands up and was surrendering) then the case (most places other than California) would have been bound over. The grand jurors, however, were free to decide what likely happened from evidence that was impossible to disbelieve (forensic and autopsy) and from overlapping, mutually supporting testimony. Based on this evidence the jurors were free (and indeed required) to ignore testimony that seemed false, or even implausible, in rendering a decision.

So in the real world, in a case not receiving the publicity this case received, given the evidence the prosecutor had to present, I know that there would have been no charges from his office in the first place. Given the political weight this case had from incredibly bad reporting of a false narrative from the beginning, I'm OK with the decision to put it to a Grand Jury. That way, he had their verdict and the record of the evidence (generally kept secret, but not here) to buttress his decision not to bring charges. But once he decides and the Grand Jury says no true bill, that's it. We don't charge people without probable cause merely because there are people who don't understand the difference between a prelim and a Grand Jury. QED.

* if you've not read his "Monster Hunter International" you've missed one of the greatest opening lines of fiction. (Right up there with “Scarlett O’Hara was not beautiful, but men seldom realized it.” and "It was the best of times, it was the worst of times, ..."

It goes: "Five days after Owen Zastava Pitt pushed his insufferable boss out of a fourteenth story window, he woke up in the hospital with a scarred face, an unbelievable memory, and a job offer. "

In Missouri, a prosecutor has no duty to present exculpatory evidence to a grand jury. State v. Easter, 661 S.W.2d 644, 645 (Mo. App. 1983). However, the American Bar Association's Standards for Criminal Justice, provide that "[n]o prosecutor should knowingly fail to disclose to the grand jury evidence which tends to negate guilt or mitigate the offense." American Bar Association Standards for Criminal Justice, Prosecution Function, Standard 3-3.6(b) (3d ed. 1993). The United States Attorneys' Manual states that "when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence which directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person." Cases in which the prosecutor withholds exculpatory evidence in order to mislead or deceive the grand jury generally involve a breach of professional ethics. The irony, of course, is that the lefties are condemning McCulloch for doing exactly what lefties always say a prosecutor should do: present exculpatory evidence to the grand jury.